JAGAT NARAYAN, J.—This is an appeal by the defendants against an order of the District Judge, Bharatpur, remanding the suit under order 41 rule 23 C.P.C. after reversing the finding of the trial court on the question of limitation.

2. Govind plaintiff filed the present suit on 8-4-63 against the 4 defendants for the recovery of arrears of rent and for eviction on the grounds of default and personal necessity in respect of a building containing two shops and an upper storey. The building was originally owned by Ram Gopal father of Sitaram and Radhey Shyam defendants and grand-father of Kishori Shyam and Ram Babu defendants. Ram Gopal executed a sale-deed of this property in favour of Ratanlal on 30-1-1933. On the same date Ram Gopal executed a rent-note in favour of Ratanlal taking the property on lease for a period of 3 years. This rent-note was not registered. On 19-9-38 Ratanlal sold the building to Gyasi Ram father of the present plaintiff. The case in the plaint is that Ram Gopal used to pay rent to Ratanlal after he had sold the property to the latter, and to Gyasi Ram alter Ratanlal had sold it. It was alleged that rent was paid upto 30-11-60 regularly but that it was not paid from 1-12-60. The suit was brought for the recovery of arrears of rent from 1-12-60 to 31-3-63.

3. The suit was contested by the defendants who alleged that the sale-deed in favour of Ratanlal was fictitious and was executed to save the property from creditors, that Ratanlal was a friend of Ram Gopal, that no rent was ever paid to Ratanlal or to Gyasi Ram or to Gyasi Rams sons and grandsons. It was admitted that Ramgopal executed a rent-note in favour of Ratanlal. But it was alleged that the rent-note was also fictitious and was executed in order to make it appear that the sale-deed was genuine. It was asserted that Ram Gopal continued to be in possession of the property as owner and whenever rent was demanded from Ram Gopal or his sons by Gyasi Ram the latter was told that Ram Gopal was the owner of the property and he had no right to recover any rent. The trial court framed the following issues : —

(1) Is the suit within limitation ?

(2) Whether the suit premises are with the defendants on lease on a monthly rent of Rs. 10/- ?

(3) Whether the plaintiff is entitled to recover rent for 28 months from 1-12-60 to 31-3-63 at Rs. 10/- per month from the defendants ?

(4) Is the plaintiff entitled to evict the defendants from the suit premises?

Both parties produced evidence on the whole case pleaded by them in the plaint and the written statement respectively. All the pleas raised in the pleadings will be taken to be covered by the above issues and a decision shall have to be given under the above 4 issues of all the pleas.

4. The trial court assumed that Ram Gopal became the tenant of Ratanlal by executing a rent-note in his favour. No decision was given by it on the plea that the sale-deed as well as the rent-note in favour of Ratanlal were fictitious. On the assumption that Ram Gopal had become the tenant of Ratanlal by execut-ing the rent-note for a period of 3 years it held that the suit was barred by limita-tion under article 139 of old Limitation Act on the expiry of the period of 12 year from the date of the expiry of the tenancy under the rent-note. It repelled the contention of the plaintiff that merely by a demand of rent on the part of the plaintiff there was a renewal of the lease within the meaning of sec. 116 of the Transfer of Property Act on the expiry of the period of tenancy.

5. The appellate court was under the impression that by admitting the execution of a rent-note the defendants had admitted that Ram Gopal was a tenant of Ratanlal and his successors. This was erroneous as the case of the defendants was that the rent-note as well as the sale-deed were both fictitious. They did not admit that Ram Gopal was ever the tenant of Ratanlal or Gyasiram.

6. Further the appellate court held that as Ramgopal and his sons remained in possession of the

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